Ivey v. Millard Refrigerated Services, 2009 HRTO 1065

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marie Ivey

Applicant

-and-

Millard Refrigerated Services – Canada – ULC, Doug Binford, Jim Emery, Brian Emmel, Barry Fischetto, and Kimberley Lepaine

Respondents

Interim DECISION

Adjudicator: Judith Keene

Date: July 20, 2009

Citation: 2009 HRTO 1065

Indexed as: Ivey v. Millard Refrigerated Services

1This Interim Decision addresses whether the Tribunal has jurisdiction over this Application, as the applicant is plaintiff in an ongoing civil proceeding.

2The Application, dated March 20, 2009, alleges that the respondents discriminated against the applicant on the basis of race, colour, ancestry, place of origin, ethnic origin, sex, and family status in dismissing her from employment. After filing the Application, the applicant commenced a wrongful dismissal action against the respondents in Small Claims Court that was issued on May 5, 2009.

3In the Response the respondents ask that the Tribunal dismiss the Application because “a claim against Millard based on the same alleged has been filed by Ms. Ivey in civil court”. The Response refers to one paragraph in the applicant’s Statement of Claim. That paragraph refers to “acts of the employer that were callous, insensitive and in bad faith” and cites a remark that the plaintiff construes as a reference to “the fact that the Plaintiff was black”. The respondent cites two decisions of the Tribunal, Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282 and Lloyd v. Novopharm, 2009 HRTO 377.

STATUTORY PROVISIONS

4Section 34 (11) of the Code provides:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

5Section 46.1 reads as follows:

46.1(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

ANALYSIS

6Sections 46.1 and 34(11) are new provisions that took effect on June 30, 2008. Section 46.1 gives courts new powers to provide remedies for violations of the Code. However, where a civil proceeding has been commenced seeking such remedies and the proceeding has not been finally determined or withdrawn, s. 34(11)(a) bars an application to the Tribunal.

7As noted in Beaver v. Dr. Hans Epp Dentistry Professional Corporation, above, it is only where the applicant has brought a civil proceeding as described in s. 34(11) that the legislation provides that the Tribunal has no jurisdiction over the application.

8Based on my review of the Statement of Claim and having considered the submissions of the parties, I am satisfied that the civil action is a claim specifically for wrongful or constructive dismissal on the grounds that the corporate respondent’s decision to terminate the applicant’s employment contract was without cause. Paragraph 12 makes a suggestion that the applicant’s race might have been a factor in her dismissal, but there is no specific claim that the applicant’s rights under the Code were infringed and no remedy is sought for an alleged breach of the Code.

9In the circumstances of this case, s. 34 (11) of the Code is not engaged.

10I order the Respondents to provide a full Response within the time prescribed by the Tribunal’s Rules. The applicant has indicated that she would be willing to attempt mediation, and if the respondents are also willing to mediate, the Registrar will set a date for mediation.

11I am not seized.